Understanding the Executive Order on Online Censorship

On May 28, 2020, President Donald J. Trump signed an executive order banning censorship by online platforms. To discuss the order and its possible impact, GLG talked to Tom Wheeler, former Chairman of the Federal Communications Commission and former Chairman of the Cellular Telecommunications and Internet Association. Edited excerpts of the discussion follow.

A key component of the executive order deals with Section 230 of the 1996 Communications Decency Act. Briefly walk us through that section and explain why it’s so important today.

That section has been called the 26 words that created the internet. It has two parts. The first prohibited indecent or lewd material on the internet, and a year after passage of the law, the Supreme Court struck down the section as a violation of the First Amendment. The focus since then has been on what remains, which involves the liability of content. There have been two interpretations of that. One maintains that those who provide information on the internet are not publishers and therefore are not responsible for anything. There have been many legal cases based on that interpretation.

Perhaps the more relevant aspect is the section’s intent that when internet content companies act as publishers and make editorial decisions, they have no liability if they make “good faith” decisions to remove content.

It’s safe to say that the internet has changed considerably since 1996, and there has been lots of talk about updating Section 230. But the question is, with what? You don’t eliminate it unless you know what you’re replacing it with. The challenge is how to replace it so it conforms with the First Amendment, which has always been informed by time, place, and manner. We all understand that shouting “Fire!” in a crowded theater is not protected by the First Amendment. But what’s the digital equivalent of that?

Finally, it seems that Trump’s executive order proposes that the FCC assert jurisdiction to define “good faith.” The difficulty is that the FCC does not have such authority, which is limited to those licensed by the FCC or using licensed facilities.

If Section 230 were revoked or updated, what do you think it would look like? Or could it remain as is and be reinterpreted in a different way?

I don’t think that Trump wants to revoke Section 230 or that he particularly cares about the policy involved; until the election, he just wants the power that comes with a threat. After all, 230 has been his huge protector, particularly because it has indemnified Twitter against liability.

One of the giveaways that Trump isn’t really looking for policy answers is that the executive order gives the National Telecommunications and Information Administration (NTIA) 60 days to file rulemaking procedures with the FCC. The executive order was written in 48 hours, so NTIA doesn’t need 60 days to make the filing. But those are two months in which the FCC need not decide anything, which puts us just three months away from the election – too short a time frame for the FCC to decide anything.

Nevertheless, I still think that something should be done about Section 230, because it goes to the heart of internet governance. For the last several decades, Congress has bought the idea that regulating the internet would ruin innovation. That approach created an environment in which the internet companies themselves make the rules. So when Mark Zuckerberg says that Facebook is a technology, not media, he’s making his own set of rules despite the fact that he makes money as a result of his algorithms making editorial decisions. We must come to grips with that, especially the issue of liability of content. It can’t be that content providers are free to make editorial decisions but are not responsible for anything, because we’re all responsible for the consequences of our actions.

Realistically, there are two ways to bring that about. Legislation would be the optimal solution, but the problem is that Congress can’t agree on anything. The other solution would be a court interpretation that differs from the current broad interpretation of Section 230, potentially throwing the issue into the Supreme Court’s lap. A congressional solution would be better.

What do you think the proper course of action should be for Facebook and Twitter?

 Zuckerberg’s argument that Facebook is a technology, not media, is just irresponsible. Its selling of algorithmic editorial decisions is an activity of a media company. I have been very disappointed in Mark’s reaction; let’s call it for what it is – appeasement. The correct policy would be to apply some of the company’s engineering brain power to build editorial parameters for its AI algorithms. That applies to the YouTube part of Google too, which also needs to step up its responsibilities. By definition, of course, new editorial parameters would reduce revenue. But let’s remember that traditional broadcasters never carried commercials for liquor, condoms or cigarettes, not because of a law, but because the National Association of Broadcasters stuck to a code of behavior. Today, just as in the past, there are bigger things than dollars at stake.

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About Tom Wheeler

Tom Wheeler is the Former Chairman of the Federal Communications Commission (FCC), confirmed in 2013. Before working at the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry. Before becoming Chairman of the FCC, Wheeler was a technology entrepreneur and executive at Core Capital Partners. Prior to that, Tom served as the CEO of the Cellular Telecommunications and Internet Association until 2004. In addition, he has held roles at the National Cable and Telecommunications Association. Wheeler is currently a Visiting Fellow at the Brookings Institution and the Shorenstein Fellow at the Harvard Kennedy School as well as running his personal services and investment company, the Shiloh Group.

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This article is adapted from the June 4, 2020, GLG teleconference “President Trump’s Executive Order on Online Censorship.” If you would like access to this teleconference or would like to speak with Tom Wheeler, or any of our more than 700,000 experts, contact us.